Washington event on “The Implications of the Kenyan Election” tomorrow; Mutunga’s judicial philosophy

Tomorrow afternoon at the National Endowment for Democracy, Joel Barkan and Maina Kiai will discuss “The Implications of the Kenyan Election”. Watch the video stream from 1930 to 2100 GMT or 1:30 to 3:00pm EDT (Washington) time.

In continuing to try to come to grips with the lack of substance of the Supreme Court’s ruling in the election petition cases, I am reminded of an article from The Africa Report for February, titled “Can They Pull It Off? The judiciary and electoral commission say they are prepared for the 4 March vote and will not repeat the mistakes of the contested December 2007 polls”.

In the article, the new Chief Justice Mutunga gives what my be some foreshadowing of the Court’s ultimate deference to the IEBC in the election petitions:

Keeping the three arms of government separate and independent should not rule out constructive cooperation, says Mutunga: “I see us protecting the independence of the judiciary but also realising that you’ve got to talk to the ministry of finance, to parliament and that sometimes you might also ask the president to intervene.”

A dialogue between the arms of state is important, insists Mutunga: “As a matter of fact, President [Mwai] Kibaki has never called me about a case. The the hotline [from the President’s office to the Chief Justice’s] is not hot — nobody uses it!” As chief justice, Mutunga joined discussions last year with businesses and President Kibaki about how to ensure the elections were credible and peaceful. He added that the judiciary is committed to helping the Independent Electoral and Boundaries Commission (IEBC). For example, it has allocated special courts to deal with all electoral disputes quickly.

. . . .

There is, however, nervousness about how the IEBC will fare . . . .

If the role of the Court is to work collectively with the other parts of the Government to promote “credibility” to keep “peace” then perhaps it is best to ignore “legalistic” details like more votes than registered voters in many polling places, and the raising and lowering of the number of registered voters in various parts of the country. Perhaps this is what is meant by a “robust” and “progressive” jurisprudence.



More links for Kenya’s Election; Chief Justice’s “bombshell” press conference; Debate loses a “horse”

Kenya Voting: "Curriculum Cooking"

AllAfrica.com has put together a special feature page on the Kenyan elections that is a good source for the latest stories from the main Kenyan media sources:  “Kenya Decides: 2013 Elections”. (h/t @GeorgetownDG)

On Thursday, February 28, the Institute for Security Studies Nairobi office will host a “Seminar on Kenya’s 2013 Elections: issues, actors and scenarios.”  Register on-line through the link.

IRIN has published on on-line “multimedia documentary” entitled “No Ordinary Elections” which does a nice job of informing an international audience of the basic context of the upcoming Kenyan election and includes good interviews discussing humanitarian concerns and preparations in general terms.  A work of art in internet publishing.

In the latest developments, there is a lot of buzz in the human rights community regarding the announcement by Chief Justice Mutunga at a press conference today that he had received a letter threatening judges and others regarding any ruling against the candidacy of Uhuru Kenyatta purporting to be from a Mungiki-associated group, Further, as reported in the Star story “Chief Justice Raises Concern Over Threats to Judges”:

The CJ also revealed that he was asked by an immigration officer at the JKIA to seek travel clearance from the Head of Civil Service Francis Kimemia a day after the letter was posted.

“I was stopped at the Jomo Kenyatta International Airport (JKIA) by an Immigration Officer, who insisted that I could not travel because I had not been cleared by Mr. Francis Kimemia, the Permanent Secretary, Head of the Public Service, and Secretary to the Cabinet.” Mutunga said.

The CJ further asked Inspector General of police David Kimaiyo to take the necessary steps to protect judges from threats and intimidation so as not to give constitutional rulings. “The Judiciary will not flinch from interpreting the constitution as required. The constitution must be guarded jealously,” He said.

From The Standard: CJ Mutunga bombshell”.

From the Daily Nation: “Chief Justice Speaks Out on Threatening Letter.”

Obviously a lot of difference among the media houses in how to report this.  Thus the need to read widely to put together the pieces in getting the facts and understand the interests.

While I would completely reserve judgement as to exactly what to make of the threatening letter, the “immigration” harassment is disturbing in light of Kenya’s short but unduly “colorful” history involving politics at these highest levels.  Certainly the President himself should address this if he wants to reassure the country at a time in which no one needs any more tension than can be helped.

This has overshadowed the other big political story of the day, that Uhuru Kenyatta’s campaign has announced that he will drop out of the second presidential debate scheduled for Monday, complaining of the allegedly unfair amount of emphasis on the charges he faces from the International Criminal Court and “ganging up” by the other candidates on this point.

My sense of the political strategy here would be that Kenyatta feels he is in solid position to make a runoff, and not in striking distance to win in the first round, so there is nothing major to be gained from another debate, while there are risks from undesired questions and unscripted situations.  He has plenty of money and media access as a top candidate so he probably doesn’t feel a need to share the stage to  communicate whatever he wants to say in the last days of the campaign.  Likewise, part of his approach since the ICC charges have been confirmed has been to portray himself as a victim of other politicians and interests, so claiming that he was treated unfairly in the debate fits with that theme, too.

Catching Up on Kenyan Politics–Three Related Big Developments on Reform

The past three months or so have been especially busy for me and I have to apologize for having to let go of my past practice of at least noting most of the major headlines in Kenyan politics on a current basis.  Likewise, what I have posted has been more heavily weighted toward quotes and citations to other sources and less original.

First, the big issue that I have largely taken a pass on has been the nomination and appointment of the new Supreme Court, especially the Chief Justice.  I will say that the new Chief Justice Willy Mutunga got off to a good start yesterday, in my book, by forsaking the traditional robe and wig for his swearing in.  My more egalitarian American sensitivities have always been turned off by the white wigs–we rebelled against the British and got rid of all that a long time ago.  I can appreciate decorum and a sense of dignity for the court, but I’m not sure that the white wig is even really dignified as opposed to just silly.  And in a country with as much of a problem with dramatic inequality both economically and in the legal and judicial system, it seems to me that a bit of humility is a positive thing.

More importantly it is encouraging to see the hope engendered by Mutunga’s appointment.  Mutunga has a combination of serious bona fides as a reformer through leadership in the “Second Liberation” and serious legal credentials.  Here is a column from retired Presbyterian minister Dr. Timothy Njoya that I found to be particularly persuasive in this regard.  He is obviously qualified in training and intellect, but was also seems chosen by the Judicial Service Commission in substantial part to be a leader of reforming the judiciary through his position as Chief Justice.  My interest is the process, and I don’t think it is my place as an American to have a strong opinion about who should or shouldn’t be appointed to a judicial position in Kenya, but it is gratifying to see Kenyan civil society leaders and others whom I like and admire for their courage in the context of the late Kenyan election crisis feel that Mutunga’s appointment is a step toward reform and the rule of law.

In considering the process, I will way that the JSC was a bit harsh on some applicants and I hope that in the future this will be improved on.  Here is a column in the Star saluting one of the applicants whom I had the opportunity to meet socially and found to be a very considerate person who ended up being charactured a bit in the media as a result of her interview.  A woman who has served long on the Kenyan High Court without hint of scandal deserves respect as a pioneer and the JSC certainly could have chosen reasonably to go in the direction of seeking someone with experience on the bench.

On the other hand, the appointment of the Director of Public Prosecution is quite a different matter.  Keriako Tobiko was nominated and approved in spite of very serious and specific allegations of corruption.  It is very hard to understand why this appointment makes any sense unless it is intended to protect key people from public prosecution–I wish this was a far fetched notion.  In fact, the situation seems blatant enough to almost make one wonder whether there was an “understanding”–a reformist chief justice for an insider as prosecutor to make sure that the weight of the law does not fall on the current powers that be?

A third big event that I have not discussed is the effort by the U.K. to gain extradition of Chrysanthus Okemo and Samuel Gicheru for prosecution for prosecution in Jersey.  Okemo, a member of parliament and former finance minister, and Gichuru, a former managing director of Kenya’s power supply monopoly the Kenya Power & Lighting Co. Ltd., are wanted in Jersey on corruption charges.  The allegations are that Gicheru took bribes from KPLC contractors and laundered the money to accounts in Jersey.  Payments are also alleged to have gone to Okemo as Finance Minister and as well when he was Energy Minister.

Frankly the British just have not had the best history on fighting graft involving the developing world and this initiative seems to me to be a breakthrough, consistent with the spirit of the new U.K. anti-bribery act.   I firmly believe that the ability of the “well connected” to stash ill gotten gains abroad with impunity has been a key factor in keeping most Kenyans economically marginalized and keeping the Government of Kenyan underperforming.  If the U.K is successful in this prosecution it could be a turning point toward a better pattern of development in Kenya in which the benefits of economic growth reach more citizens.

Ironically, however, Director of Public Prosecutions Tobiko is in a key role in evaluating the extradition request:

The government has ordered the formation of a high-level panel to consider a request for the extradition of former power utility boss Samuel Gichuru and Nambale MP Chris Okemo over fraud charges.

Attorney-General Amos Wako said he had received a full extradition request comprising 13 bundles of supporting documentation from Jersey Island.

As a result, Mr Wako said, he had instructed the chief public prosecutor to constitute the panel.

“Due to the complexity, magnitude and voluminous nature of the request, I have directed the chief public prosecutor, Mr Keriako Tobiko, to immediately constitute a high level team to study and analyse the supporting documentation and deal with the matter soonest,” Mr Wako said in a statement.

Sources said Mr Tobiko had constituted the team.

“Panel to decide fate of Okemo, Gicheru”, Daily Nation, 10 June 2011.